Current Petitions

PE1297, by Ranald Alasdair MacDonald of Keppoch, calls on the Scottish Parliament to urge the Scottish Government to investigate Scottish land ownership and tenure under the ur dùthchas, or native title, system of land tenure. Do members have any comments on the petition?

Obviously, as a former teacher of modern studies and history, I have a great deal of sympathy with the petitioner on the historical issues that he raises. However, the Government has clearly stated that recent changes in the law—the Abolition of Feudal Tenure etc (Scotland) Act 2000 and the Title Conditions (Scotland) Act 2003, to name but two—make it unnecessary to investigate the issue, as the decisions have already been taken.If there are any disputes, they are a matter for the courts. The keeper of the registers of Scotland“considers that there is no evidential basis for the recognition of a system of land rights flowing from ‘Dutchas’.”In a recent letter, the petitioner makes it clear to us that he regards udal tenure in Orkney and Shetland as similar to dùthchas. In fact, udal tenure replaced a form of dùthchas in Orkney and Shetland, so even that argument does not stand up. Given all the evidence and recent changes to the law, I would be happy to close the petition. It has served its purpose.

I apologise to Robin Harper for completely disagreeing with him. I do so not on his assertions of fact, which I take on their merits, but because I do not think that we have done the petition justice. Having read the papers as well as I can, I think that they contain a lot of assertion. When we are dealing with legal matters, assertion is only as good as its authority, and I have seen no authority. I am not and do not pretend to be a lawyer, but it seems to me that there are at least three ways in which one could assert that dùthchas law is now history. First, if there were a mosaic of transfers, sales and grants of all the land in Scotland that is under feudal tenure, that would demonstrate that, at a point in time, the land was definitely regarded as being under feudal tenure. I do not know whether such a mosaic exists. Secondly—and, perhaps, peculiarly to Scots law—there are books of authority that might tell us whether it was believed at a particular point that feudal law had taken over everything else; I am reminded of Viscount Stair’s “Institutions of the Law of Scotland” of 1681. If they do, that would be authority under Scots law. Thirdly—and, perhaps, most peculiarly of all—the Abolition of Feudal Tenure etc (Scotland) Act 2000 may by its very existence have asserted that all land in Scotland outside the northern islands was held under feudal tenure at the point when that was abolished. As a consequence of the 2000 act, everything may have been deemed to be held under feudal tenure beforehand, which would make the act relevant.All three of the arguments that I have set out are speculative, but in the papers that I have seen no one has addressed the issue of whether it is possible, as a matter of law, that dùthchas law continues. I am sure that that was never the intention, but that is another matter. I am not entirely convinced that reference to places such as Australia will help much in Scots law, but it would be good if someone could demonstrate some authority for the proposition that dùthchas law has become history.The Government has set out its position. I wonder whether it is possible for us to consult the academic fraternity. There must be someone somewhere in this country who has a clear idea of what the legal position is. It would be helpful, at least to me, if someone could be asked to generate the authority along the lines that I have suggested—or others—to show that dùthchas law really is history.

I disagree with Nigel Don’s assertion that we have no authority in relation to dùthchas in title deeds. We have received a submission from Andy Wightman, who is regarded as one of the leading experts on land tenure in Scotland. Over the past 20 or 30 years, he has written many books on land tenure and related issues, and on who owns Scotland—the mosaic to which Nigel Don referred. In his submission, he indicates that, in effect, dùthchas title ceased to exist when feudal tenure was imposed on the mainland of Scotland.Given that Andy Wightman has for 20 to 30 years researched land ownership and land title in Scotland, I take as authority his assertion that dùthchas tenure ceased to exist when feudal tenure was introduced in the 12th and 13th centuries. As Robin Harper and others have said, we had only udal tenure beyond that period, which existed in the Orkney Islands and Shetland Islands. Udal tenure issues might still exist, but the reality is that the debate on dùthchas tenure has passed. Like Robin Harper, I propose that we have taken the petition as far as we can, on the basis of the evidence that is before us. I support his suggestion that we close the petition.

I did not mention earlier that I have met Andy Wightman many times and that he is known to me. I respect him as one of the foremost authorities on land tenure in Scotland. Even if his assertions could be reasonably challenged, the one way to test them is in the courts and not by asking the Government to conduct an investigation. We should close the petition.

I agree that we should close the petition. If the petitioner wants to take the issue forward, the courts are the place to do so. We are considering many other more important petitions. I propose that we close it.

I sense that the broad view of members is that we should close the petition. I recommend that we close the petition on the grounds that we have discussed—I appreciate Nigel Don’s position, which is on the record. Is that okay?Members indicated agreement.